Citation NR: 9700028
Decision Date: 01/03/97 Archive Date: 02/03/97
DOCKET NO. 95-14 886 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to service connection for a hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Nancy R. Kegerreis, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1944 to June
1946.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, which denied service connection for a
hearing loss.
REMAND
The veteran contends that in basic training he sustained a
concussion resulting in bleeding of both ears, for which he
was treated with medication at a company hospital. He also
alleges that in transport to the European front, he suffered
acoustic trauma when the ship was attacked and that he
sustained another concussion during combat when a tank was
blown up; he had been subsequently treated in a convalescent
hospital in Belgium. He adds that, at the time of his
separation from service, he was held over for three days
because of problems with both of his ears.
The veteran’s service awards and citations confirm he engaged
in combat with the enemy. The Board acknowledges that he
experienced acoustic trauma during service. See 38 U.S.C.A.
§ 1154(b).
Service medical records show that the veteran had been
hospitalized in service for pneumonia, that the disease had
been incurred while in military service and that there were
no physical effects from the illness at time of discharge.
At separation from service, a hearing test by whispered voice
was normal. Several years after service, the veteran had
been treated for several episodes of otitis media following
upper respiratory infections. A myringotomy of the right ear
was performed at a private hospital. The only audiological
examination reported in the claims file was performed in
1994, and this revealed a bilateral sensorineural hearing
loss.
Unfortunately, although the RO attempted on several occasions
to obtain copies of the veteran’s service medical records,
these, except for his separation examination, are
unavailable, presumably having been destroyed in a fire
during the early 1970’s at the National Personnel Records
Center (NPRC). In cases where a veteran’s service medical
records are unavailable through no fault of the claimant,
there is a heightened obligation to assist the claimant in
the development of the case. Moore v. Derwinski,
1 Vet.App. 401, 406 (1991). That duty in this case includes
a medical opinion as to etiology. A medical examiner is to
query the veteran as to employment history following service
with reference to noise exposure and to express an opinion as
to whether it is at least as likely as not that any current
hearing loss and/or tinnitus may be related to the claimed
in-service acoustic trauma.
Under the circumstances of this case, therefore, the Board
finds that additional assistance is required. Accordingly,
this case is REMANDED to the RO for the following:
1. The veteran should be afforded a
special VA otolaryngological examination
to evaluate the current nature and extent
of any hearing loss and/or tinnitus. Any
indicated evaluations, studies, and tests
deemed necessary by the examiner should
be accomplished. The examiner is
requested to question the veteran as to
his employment and social history
following service with reference to noise
exposure. After conducting the
examination the examiner must provide an
opinion as to whether it is at least as
likely as not that any current hearing
loss and/or tinnitus is related to the
in-service acoustic trauma. In this
respect, the examiner should note that
the veteran served as platoon sergeant
with a tank company, that his service
included duty in the European Theater of
Operations, and that the fact he
experienced acoustic trauma in service is
acknowledged by the Board. The
veteran’s claims file must be made
available to the examiner for a complete
study of the case in connection with the
evaluation. The examiner must offer a
written rationale for any opinion
offered.
2. Following completion of the
foregoing, the RO should review the
claims file to ensure that all of the
foregoing development has been completed
in full. In particular, the RO should
review the examination report to ensure
that all requested opinions have been
provided.
When the requested development has been completed, the case
should again be reviewed by the RO. Unless the veteran is
satisfied with any favorable outcome and withdraws his
appeal, the case then should be returned to the Board after
compliance with the provisions for processing appeals,
including the issuance of a supplemental statement of the
case and provision of the applicable time period for response
thereto.
The purpose of this REMAND is to obtain clarifying medical
information and to ensure that due process requirements are
met. The Board does not intimate any opinion as to the
merits of this case, either favorable or unfavorable, at this
time. No action is required of the veteran until he is
notified.
BRUCE KANNEE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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